Preliminary Results of Antidumping Duty Administrative Review and Intent to Rescind in Part:
Federal Register: January 14, 2011 (Volume 76, Number 10)
Notices
Page 2648-2655
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DOCID:fr14ja11-32
DEPARTMENT OF COMMERCE
International Trade Administration
A-570-891
Hand Trucks and Certain Parts Thereof From the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review and Intent To Rescind in Part
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
DATES: Effective Date: January 14, 2011.
SUMMARY: The Department of Commerce (the Department) is currently conducting an administrative review of the antidumping duty order on hand trucks and parts thereof (hand trucks) from the People's Republic of China (PRC) covering the period of review (POR) of December 1, 2008, through November 30, 2009. We preliminarily determine that sales made by New-Tec Integration (Xiamen) Co., Ltd. (New-Tec), were not made below normal value (NV). We also preliminarily determine that two companies for which a review was requested had no shipments during the
POR, and therefore we intend to rescind the review with respect to them. Furthermore, we determine that three companies for which a review was requested have not been responsive, and thus have not demonstrated entitlement to a separate rate. As a result, we have preliminarily determined that they are part of the PRC-wide entity, and continue to be subject to the PRC-wide entity rate. We invite interested parties to comment on these preliminary results.
Parties who submit comments are requested to submit with each argument a statement of the issue and a summary of the argument.
FOR FURTHER INFORMATION CONTACT: Fred Baker, Scott Hoefke, or Robert
James, AD/CVD Operations, Office 7, Import Administration,
International Trade Administration, U.S. Department of Commerce, 14th
Street and Constitution Avenue, NW., Washington, DC 20230; telephone:
(202) 482-2924, (202) 482-4947 or (202) 482-0649, respectively.
SUPPLEMENTARY INFORMATION:
Background
On December 2, 2004, the Department published in the Federal
Register the antidumping duty order on hand trucks from the PRC. See
Notice of Antidumping Duty Order: Hand Trucks and Certain Parts Thereof
From the People's Republic of China, 69 FR 70122 (December 2, 2004). On
December 1,
Page 2649
2009, the Department published in the Federal Register its notice of opportunity to request an administrative review of the antidumping duty order on hand trucks from the PRC. See Antidumping or Countervailing
Duty Order, Finding, or Suspended Investigation; Opportunity to Request
Administrative Review, 74 FR 62743 (December 1, 2009). On December 30, 2009, Gleason Industrial Products, Inc., and Precision Products, Inc., requested that the Department conduct reviews of New-Tec, Century
Distribution Systems, Inc. (Century Distribution), Sunshine
International Corporation (Sunshine International), Zhejiang Yinmao
Import and Export Co. (Zhejiang Yinmao), Qingdao Huazhan Hardware and
Machinery Co., Ltd. (Qingdao Huazhan), and Yangjiang Shunhe Industrial
Co. (Yangjiang Shunhe). On January 29, 2010, the Department published in the Federal Register a notice of initiation of the antidumping duty administrative review of hand trucks from the PRC for the period
December 1, 2008, through November 30, 2009, with respect to the six companies named above. See Initiation of Antidumping and Countervailing
Duty Administrative Reviews and Request for Revocation in Part, 75 FR 4770 (January 29, 2010) (Initiation Notice).
We issued the standard antidumping duty questionnaire to each of the six companies on February 4, 2010, and received timely responses from New-Tec in March 2010. We issued supplemental questionnaires to
New-Tec covering sections A, C, and D of the original questionnaire in
May 2010, July 2010, and November 2010 and received timely responses to those questionnaires.
On February 25, 2010, and February 26, 2010, we received certifications of no-shipments during the POR from Century Distribution and Yangjiang Shunhe.
Period of Review
The POR covers December 1, 2008, through November 30, 2009.
Scope of the Order
The merchandise subject to this antidumping duty order consists of hand trucks manufactured from any material, whether assembled or unassembled, complete or incomplete, suitable for any use, and certain parts thereof, namely the vertical frame, the handling area and the projecting edges or toe plate, and any combination thereof. A complete or fully assembled hand truck is a hand-propelled barrow consisting of a vertically disposed frame having a handle or more than one handle at or near the upper section of the vertical frame; at least two wheels at or near the lower section of the vertical frame; and a horizontal projecting edge or edges, or toe plate, perpendicular or angled to the vertical frame, at or near the lower section of the vertical frame. The projecting edge or edges, or toe plate, slides under a load for purposes of lifting and/or moving the load.
That the vertical frame can be converted from a vertical setting to a horizontal setting, then operated in that horizontal setting as a platform, is not a basis for exclusion of the hand truck from the scope of this petition. That the vertical frame, handling area, wheels, projecting edges or other parts of the hand truck can be collapsed or folded is not a basis for exclusion of the hand truck from the scope of the petition. That other wheels may be connected to the vertical frame, handling area, projecting edges, or other parts of the hand truck, in addition to the two or more wheels located at or near the lower section of the vertical frame, is not a basis for exclusion of the hand truck from the scope of the petition. Finally, that the hand truck may exhibit physical characteristics in addition to the vertical frame, the handling area, the projecting edges or toe plate, and the two wheels at or near the lower section of the vertical frame, is not a basis for exclusion of the hand truck from the scope of the petition.
Examples of names commonly used to reference hand trucks are hand truck, convertible hand truck, appliance hand truck, cylinder hand truck, bag truck, dolly, or hand trolley. They are typically imported under heading 8716.80.50.10 of the Harmonized Tariff Schedule of the
United States (HTSUS), although they may also be imported under heading 8716.80.50.90. Specific parts of a hand truck, namely the vertical frame, the handling area and the projecting edges or toe plate, or any combination thereof, are typically imported under heading 8716.90.50.60 of the HTSUS. Although the HTSUS subheadings are provided for convenience and customs purposes, the Department's written description of the scope is dispositive.
Excluded from the scope are small two-wheel or four-wheel utility carts specifically designed for carrying loads like personal bags or luggage in which the frame is made from telescoping tubular materials measuring less than \5/8\ inch in diameter; hand trucks that use motorized operations either to move the hand truck from one location to the next or to assist in the lifting of items placed on the hand truck; vertical carriers designed specifically to transport golf bags; and wheels and tires used in the manufacture of hand trucks.
Intent To Rescind Review in Part
As indicated above, in February 2010, we received certifications of no shipments from Century Distribution and Yangjiang Shunhe. We made inquiries with U.S. Customs and Border Protection (CBP) as to whether any shipments were entered with respect to these two companies during the POR. See message numbers 0158302 and 0158303, both dated June 7, 2010. We received no responses to those inquiries indicating that any shipments from either Century Distribution or Yangjiang Shunhe entered during the POR. We also examined CBP information to further confirm no shipments by these companies during the POR. Based on the above, we preliminarily find that both of these companies had no shipments of subject merchandise during the POR, and we intend to rescind the review with respect to them pursuant to 19 CFR 351.213(d)(3).
Interested parties may submit comments on the Department's intent to rescind with respect to these two companies no later than 30 days after the date of publication of these preliminary results of review.
The Department will issue the final rescission (if appropriate), which will include the results of its analysis of issues raised in any comments received, in the final results of review.
Non-Market Economy Country Status
In every case conducted by the Department involving the PRC, we have treated the PRC as a non-market economy (NME) country. See, e.g.,
Pure Magnesium from the People's Republic of China: Final Results of
Antidumping Duty Administrative Review, 73 FR 76336 (December 16, 2008); and Frontseating Service Valves from the People's Republic of
China: Final Determination of Sales at Less Than Fair Value and Final
Negative Determination of Critical Circumstances, 74 FR 10886 (March 12, 2009). In accordance with section 771(18)(C)(i) of the Tariff Act of 1930, as amended (the Act), any determination that a foreign country is an NME country shall remain in effect until revoked by the administering authority. See, e.g., Brake Rotors From the People's
Republic of China: Final Results and Partial Rescission of the 2004/ 2005 Administrative Review and Notice of Rescission of 2004/2005 New
Shipper Review, 71 FR 66304 (November 14, 2006). None of the parties to this proceeding have contested such treatment or provided record evidence
Page 2650
to reconsider our continued treatment of the PRC as an NME.
Accordingly, we calculated NV in accordance with section 773(c) of the
Act, which applies to NME countries.
Separate Rates Determination
A designation of a country as an NME remains in effect until it is revoked by the Department. See section 771(18)(C) of the Act.
Accordingly, there is a rebuttable presumption that all companies within the PRC are subject to government control, and thus should be assessed a single antidumping duty rate. It is the Department's policy to assign all exporters of the merchandise subject to review in NME countries a single rate unless an exporter can affirmatively demonstrate an absence of government control, both in law (de jure) and in fact (de facto), with respect to exports. To establish whether a company is sufficiently independent to be entitled to a separate, company-specific rate, the Department analyzes each exporting entity in an NME country under the test established in the Final Determination of
Sales at Less than Fair Value: Sparklers from the People's Republic of
China, 56 FR 20588 (May 6, 1991), (Sparklers) as amplified by the
Notice of Final Determination of Sales at Less Than Fair Value: Silicon
Carbide from the People's Republic of China, 59 FR 22585 (May 2, 1994)
(Silicon Carbide).
Absence of De Jure Control
The Department considers the following de jure criteria in determining whether an individual company may be granted a separate rate: (1) An absence of restrictive stipulations associated with the individual exporter's business and export licenses; (2) any legislative enactments decentralizing control of companies; and (3) any other formal measures by the government decentralizing control of companies.
See Sparklers, 56 FR at 20589. In this review New-Tec submitted complete responses to the separate rates section of the Department's questionnaire. The evidence submitted by New-Tec includes government laws and regulations on corporate ownership and control (i.e., the
Foreign Trade Law of the People's Republic of China and the Law of the
People's Republic of China on Foreign Joint Ventures), its individual business license, and narrative information regarding its operations and selection of management. The evidence provided by New-Tec supports a preliminary finding of a de jure absence of government control over its export activities based on the record: (1) There are no controls on exports of subject merchandise, such as quotas applied to, or licenses required for, exports of the subject merchandise to the United States;
(2) the government of the PRC has passed legislation decentralizing control of companies; and (3) there are other formal measures by the government decentralizing control of companies. See New-Tec's March 30, 2010, submission at 1 and its June 8, 2010, submission at 2-5.
Absence of De Facto Control
The absence of de facto government control over exports is based on whether the company: (1) Sets its own export prices independent of the government and without the approval of a government authority; (2) retains the proceeds from its export sales and makes independent decisions regarding the disposition of profits or financing of losses;
(3) has the authority to negotiate and sign contracts and other agreements; (4) has autonomy from the government regarding the selection of management. See Silicon Carbide, 59 FR at 22587;
Sparklers, 56 FR at 20589; and Final Determination of Sales at Less
Than Fair Value: Furfuryl Alcohol From the People's Republic of China, 60 FR 22544, 22545 (May 8, 1995).
In its March 1, 2010, submission, New-Tec submitted evidence demonstrating an absence of de facto government control over its export activities. Specifically, this evidence indicates that: (1) The company sets its own export prices independent of the government and without the approval of a government authority; (2) the company retains the proceeds from its sales and makes independent decisions regarding the disposition of profits or financing of losses; (3) the company has a general manager with the authority to negotiate and bind the company in an agreement; (4) the general manager is selected by the board of directors; (5) the general manager appoints the other management personnel; and (6) there are no restrictions on the company's use of export revenues. Therefore, we preliminarily find that New-Tec has established that it qualifies for a separate rate under the criteria established by Silicon Carbide and Sparklers.
Surrogate Country
When the Department is investigating imports from an NME country, section 773(c)(1) of the Act directs it to base NV, in most circumstances, on the NME producer's factors of production (FOPs), valued in a surrogate market economy country or countries considered to be appropriate by the Department. In accordance with section 773(c)(4) of the Act, in valuing the FOPs, the Department shall utilize, to the extent possible, the prices or costs of FOPs in one or more market economy countries that are: (1) At a level of economic development comparable to that of the NME country; and (2) significant producers of comparable merchandise.
The Department determined that India, the Philippines, Indonesia,
Thailand, Ukraine, and Peru are countries comparable to the PRC in terms of economic development.\1\ Moreover, it is the Department's practice to select an appropriate surrogate country based on the availability and reliability of data from the countries. See Department
Policy Bulletin No. 04.1: Non-Market Economy Surrogate Country
Selection Process (March 1, 2004) (Surrogate Country Policy Bulletin).
In the most recently completed proceeding involving the Order, we determined that India is comparable to the PRC in terms of economic development and has surrogate value data that are available and reliable. See Hand Trucks and Parts Thereof From the People's Republic of China: Final Results of Antidumping Duty Administrative Review, 75
FR 29314 (May 25, 2010). In the current proceeding, we received no comments regarding surrogate country selection. Because India meets all of the criteria discussed below, we continue to find that India is the appropriate surrogate country. Specifically, we have selected India because it is at a level of economic development similar to the PRC, it is a significant producer of comparable merchandise, and we have reliable, publicly available data from India representing broad-market averages. See 773(c)(4) of the Act; see also Memorandum to the File, from Fred Baker, Analyst, Subject: Antidumping Duty Administrative
Review of Hand Trucks and Parts Thereof from the People's Republic of
China: Selection of a Surrogate Country, dated January 7, 2011.
\1\ See Memorandum from Carole Showers, Director, Office of
Policy, to Richard Weible, Director, Office 7; Subject: Request for a List of Surrogate Countries for an Administrative Review of the
Antidumping Duty Order on Hand Trucks and Parts Thereof from the
People's Republic of China, dated June 28, 2010. The Department notes that these six countries are part of a non-exhaustive list of countries that are at a level of economic development comparable to the PRC. See the Department's letter to ``All Interested Parties;
First Administrative Review of Steel Wire Garment Hangers from the
People's Republic of China: Deadlines for Surrogate Country and
Surrogate Value Comments,'' dated March 25, 2010 at 1 and Attachment
I (``Surrogate Country List'').
Page 2651
U.S. Price
Pursuant to 19 CFR 351.401(i), we used invoice date as the date of sale. Because record evidence indicated the terms of New-Tec's U.S. sales changed following the contract date, we determine that no date other than invoice date better reflects when the material terms of sale are set. See 19 CFR 351.401(i); see also New-Tec's June 8, 2010, submission at 3.
In accordance with section 772(a) of the Act, we based New-Tec's
U.S. prices on export prices (EP), because its first sales to an unaffiliated purchaser were made before the date of importation and the use of constructed export price was not otherwise warranted by the facts on the record. As appropriate, we deducted foreign inland freight and foreign brokerage and handling from the starting price (or gross unit price), in accordance with section 772(c)(2) of the Act. These services were provided by NME vendors for New-Tec's U.S. sales.
Therefore, we based the deduction of these movement charges on surrogate values. See Memorandum to the File, ``Administrative Review of Hand Trucks and Parts Thereof from the People's Republic of China:
Surrogate Values for the Preliminary Results'' (New-Tec Surrogate
Values Memorandum) at Exhibit 7.
We valued foreign inland freight (which consisted of truck freight) using a per-unit, POR-wide, average rate calculated from Indian data on the following Web site: http://www.infobanc.com/logistics/logtruck.htm.
The logistics section of this Web site contains inland freight truck rates between many large Indian cities. See New-Tec Surrogate Values
Memorandum at Exhibit 6.
We valued brokerage and handling using a price list of export procedures necessary to export a standardized cargo of goods in India.
The price list is compiled based on a survey case study of the procedural requirements for trading a standard shipment of goods by ocean transport in India that is published in Doing Business 2010:
India, published by the World Bank. See New-Tec Surrogate Values
Memorandum at Exhibit 7.
Our surrogate values for truck freight and for brokerage and handling were in Indian rupees. Therefore, in accordance with section 773A(a) of the Act and 19 CFR 351.415, we converted them to U.S. dollars (USD) using the official exchange rate for India recorded on the date of sale of subject merchandise in this case. See http:// www.ia.ita.doc.gov/exchange/index.html.
Normal Value 1. Methodology
Section 773(c)(1)(A) & (B) of the Act provides that the Department shall determine the NV using an FOP methodology if the merchandise under review is exported from an NME and the information does not permit the calculation of NV using home-market prices, third-country prices, or constructed value under section 773(a) of the Act. The
Department bases NV on FOPs because the presence of government controls on various aspects of the NME economy renders price comparisons and the calculation of production costs invalid under the Department's normal methodologies.\2\
\2\ See, e.g., Tapered Roller Bearings and Parts Thereof,
Finished or Unfinished, From the People's Republic of China:
Preliminary Results of Antidumping Duty Administrative Review and
Notice of Intent to Rescind in Part, 70 FR 39744 (July 11, 2005), unchanged in Tapered Roller Bearings and Parts Thereof, Finished and
Unfinished, from the People's Republic of China: Final Results of 2003-2004 Administrative Review and Partial Rescission of Review, 71
FR 2517 (January 17, 2006).
In accordance with section 773(c) of the Act, we calculated NV by adding the value of the FOPs, general expenses, profit, and packing costs reported by New-Tec. The FOPs for subject merchandise include:
(1) Quantities of raw materials employed; (2) hours of labor required;
(3) amounts of energy and other utilities consumed; (4) representative capital and selling costs; and (5) packing materials. See section 773(c)(3) of the Act. We valued the FOP that New-Tec reported by multiplying the amount of the factor consumed in producing subject merchandise by the average unit surrogate value of the factor derived from the Indian surrogate values selected.
The Department used Indian import statistics to value the raw material and packing material inputs that New-Tec used to produce the merchandise under review except where listed below. In past cases, it has been the Department's practice to use import statistics reported by the World Trade Atlas (WTA),\3\ as published by Global Trade
Information Services (GTIS). However, in October 2009, the Department learned that Indian import data obtained from the WTA, as published by
GTIS, began identifying the original reporting currency for India as the USD. The Department then contacted GTIS about the change in the original reporting currency for India from the Indian rupee to the USD.
Officials at GTIS explained that while GTIS obtains data on imports into India directly from the Ministry of Commerce, Government of India, as denominated and published in Indian rupees, the WTA software is limited with regard to the number of significant digits it can manage.
Therefore, GTIS made a decision to change the official reporting currency for Indian data from the Indian rupee to the USD in order to reduce the loss of significant digits when obtaining data through the
WTA software. GTIS explained that it converts the Indian rupee to the
USD using the monthly Federal Reserve exchange rate applicable to the relevant month of the data being downloaded and converted.\4\
\3\ See Certain Preserved Mushrooms From the People's Republic of China: Preliminary Results of Antidumping Duty New Shipper
Review, 74 FR 50946, 50950 (October 2, 2009), unchanged in Certain
Preserved Mushrooms From the People's Republic of China: Final
Results of Antidumping duty New Shipper Review, 74 FR 65520
(December 20, 2009).
\4\ See Certain Oil Country Tubular Goods from the People's
Republic of China: Final Determination of Sales at Less Than Fair
Value, Affirmative Final Determination of Critical Circumstances and
Final Determination of Targeted Dumping, 75 FR 20335 (April 19, 2010), and accompanying Issues and Decision Memorandum at Comment 4.
Notwithstanding the GTIS reporting methodology, the data reported in the Global Trade Atlas (GTA) software report import statistics, such as data from India, in the original reporting currency, and thus these data correspond to the original currency value reported by each country. Additionally, the data reported in the GTA software is reported to the nearest digit, and thus there is not a loss of data by rounding as there is with the data reported by the WTA software.
Consequently, the Department will now obtain import statistics from GTA for valuing various FOPs because the GTA import statistics are in the original reporting currency of the country from which the data are obtained and have the same level of accuracy as the original data released.
As appropriate, we added freight costs to the surrogate values that we calculated for New-Tec's material inputs to make these prices delivered prices. We calculated these freight costs by multiplying surrogate freight rates by the shorter of the reported distance from the domestic supplier to the factory that produced the subject merchandise or the distance from the nearest seaport to the factory that produced the subject merchandise, as appropriate. Where there were multiple domestic suppliers of a material input, we calculated a weighted-average distance after limiting each supplier's distance to no more than the distance from the nearest seaport to New-Tec. This adjustment is in accordance with the decision by the
Page 2652
Court of Appeals for the Federal Circuit in Sigma Corp. v. United
States, 117 F.3d 1401, 1407-1408 (Fed. Cir. 1997). We increased the calculated costs of the FOPs for surrogate general expenses and profit.
See New-Tec Surrogate Values Memorandum at Exhibit 8.
Energy inputs consisted of water, electricity, and liquid petroleum gas. We valued electricity using price data for small, medium, and large industries, as published by the Central Electricity Authority of the Government of India in its publication titled Electricity Tariff &
Duty and Average Rates of Electricity in India, dated March 2008. See
Surrogate Values Memorandum at Exhibit 4. These electricity rates represent actual country-wide publicly available information on tax- exclusive electricity rates charges to industries in India. To value water, the Department used the revised Maharastra Industrial
Development Corporation water rates, which are available at http:// www.midcindia.com/water-supply. The Department found this source to be the best available information because it includes a wide range of industrial water rates. Since the water rates were not contemporaneous with the POR, the Department adjusted the value for inflation. See
Surrogate Values Memorandum at Exhibit 4. We valued liquid petroleum gas using import statistics from the GTA as described above. See
Surrogate Values Memorandum at Exhibit 3.
We offset New-Tec's material costs for revenue generated from the sale of recovered steel scrap and recovered aluminum scrap. See New-Tec
Surrogate Values Memorandum at Exhibit 8.
Indian surrogate values were denominated in rupees and were converted to USD using the applicable average exchange rate based on exchange rate data from the Department's Web site. For further details regarding the surrogate values used for these preliminary results, see
New-Tec's Surrogate Value Memorandum.
New-Tec reported that several of its raw materials were sourced from market-economy countries and paid for in market-economy currencies. Pursuant to 19 CFR 351.408(c)(1), when a respondent sources inputs from a market-economy supplier in meaningful quantities (i.e., not insignificant quantities), the Department normally will use the actual price paid by the respondent for those inputs.\5\ Because information reported by New-Tec demonstrates that it purchased significant quantities (i.e., 33 percent or more) of certain inputs from market-economy suppliers, the Department used New-Tec's actual market-economy purchase prices to value its FOPs for these inputs.\6\
Where appropriate, we added freight expenses to the market-economy prices for these inputs. Where New-Tec made market economy purchase of inputs that may have been dumped or subsidized, were not bona fide, or were otherwise not acceptable for use in a dumping calculation, the
Department excluded them from the numerator of the ratio to ensure a fair determination of whether valid market-economy purchases meet the 33 percent threshold.\7\
\5\ See Antidumping Duties; Countervailing Duties, 62 FR 27296, 27366 (May 19, 1997).
\6\ See Antidumping Methodologies: Market Economy Inputs,
Expected Non-Market Economy Wages, Duty Drawback; and Request for
Comments, 71 FR 61716, 61717 (October 19, 2006) (Antidumping
Methodologies).
\7\ See Antidumping Methodologies, 71 FR at 61717-18.
To value the surrogate financial ratios for factory overhead (OH), selling, general & administrative (SG&A) expenses, and profit, the
Department used the 2008-2009 financial statement of Godrej & Boyce
Manufacturing Company, Ltd. (Godrej). Godrej is a producer of comparable merchandise. Its financial ratios for OH and SG&A are comparable to New-Tec's financial ratios by virtue of each company's production of comparable merchandise. See Surrogate Values Memorandum at Exhibit 8. 2. Selection of Surrogate Values
In selecting the ``best available information for surrogate values'' (see section 773(c)(1) of the Act) consistent with the
Department's practice, we considered whether the information was publicly available, product-specific, representative of broad market average prices, contemporaneous with the POR, and free of taxes.\8\ We also considered the quality of the source of surrogate information. See
Manganese Metal From the People's Republic of China; Final Results and
Partial Rescission of Antidumping Duty Administrative Review, 63 FR 12440 (March 13, 1998). Where we could obtain only surrogate values that were not contemporaneous with the POR, consistent with our practice, we inflated the surrogate values using, where appropriate, the Indian wholesale price index as published in International
Financial Statistics by the International Monetary Fund. See New-Tec
Surrogate Values Memorandum at Exhibit 2.
\8\ See, e.g., Notice of Preliminary Determination of Sales at
Less Than Fair Value, Negative Preliminary Determination of Critical
Circumstances and Postponement of Final Determination: Certain
Frozen and Canned Warmwater Shrimp From the Socialist Republic of
Vietnam, 69 FR 42672, 42682 (July 16, 2004), unchanged in Final
Determination of Sales at Less Than Fair Value: Certain Frozen and
Canned Warmwater Shrimp From the Socialist Republic of Vietnam, 69
FR 71005 (December 8, 2004).
In accordance with the legislative history of the Omnibus Trade and
Competitiveness Act of 1988, see Conf. Report to Accompany H.R. 3, H.R.
Rep. No. 576, 100th Cong., 2nd Sess. (1988) (OTCA 1988) at 590, the
Department continues to disregard surrogate values if it has a reason to believe or suspect the source data may be subsidized and there are other usable data on the record. See Pure Magnesium from the People's
Republic of China: Final Results of Antidumping Duty Administrative
Review, 75 FR 80791 (December 23, 2010). In this regard, the Department has previously found that it is appropriate to disregard such prices from Indonesia, South Korea and Thailand because we have determined that these countries maintain broadly available, non-industry specific export subsidies. Based on the existence of these subsidy programs that were generally available to all exporters and producers in these countries at the time of the POR, the Department finds that it is reasonable to infer that all exporters from Indonesia, South Korea and
Thailand may have benefitted from these subsidies.\9\ Additionally, we disregarded prices from NME countries. Finally, we excluded imports that were labeled as originating from an ``unspecified'' country from the average value, because the Department could not be certain that they were not from either an NME country or a country with general export subsidies.\10\
\9\ See, e.g., Expedited Sunset Review of the Countervailing
Duty Order on Certain Cut-to-Length Carbon Quality Steel Plate from
Indonesia, 70 FR 45692 (August 8, 2005), and accompanying Issues and
Decision Memorandum at page 4; Corrosion-Resistant Carbon Steel Flat
Products from the Republic of Korea: Final Results of Countervailing
Duty Administrative Review, 74 FR 2512 (January 15, 2009), and accompanying Issues and Decision Memorandum at Comment 1, pages 17, 19-20; and Certain Hot-Rolled Carbon Steel Flat Products from
Thailand: Final Results of Countervailing Duty Determination, 66 FR 50410 (October 3, 2001), and accompanying Issues and Decision
Memorandum at Comment 1.
\10\ See Fresh Garlic from the People's Republic of China:
Preliminary Results of New Shipper Review, 75 FR 24578 (May 5, 2010), unchanged in Fresh Garlic From the People's Republic of
China: Final Results of New Shipper Review , 75 FR 51004 (August 18, 2010).
On May 14, 2010, the Court of Appeals for the Federal Circuit
(Federal Circuit) in Dorbest Ltd. v. United States, 604 F.3d 1363, 1372
(CAFC 2010) (Dorbest IV), found that the ``(regression-based) method for calculating wage rates
Page 2653
(as stipulated by 19 CFR 351.408(c)(3)) uses data not permitted by (the statutory requirements laid out in section 773 of the Act (i.e., 19
U.S.C. 1677b(c))).'' The Department is continuing to evaluate options for determining labor values in light of the recent Federal Circuit decision. However, for these preliminary results, we have calculated an hourly wage rate to use in valuing respondents' reported labor input by averaging industry-specific earnings and/or wages in countries that are economically comparable to the PRC and that are significant producers of comparable merchandise.
For the preliminary results of this AR, the Department is valuing labor using a simple average industry-specific wage rate using earnings or wage data reported under Chapter 5B by the International Labor
Organization (ILO). To achieve an industry-specific labor value, we relied on industry-specific labor data from the countries we determined to be both economically comparable to the PRC and significant producers of comparable merchandise. A full description of the industry-specific wage rate calculation methodology is provided in the New-Tec Surrogate
Values Memorandum at Exhibit 5. The Department calculated a simple- average, industry-specific wage rate of $1.51 for these preliminary results. Specifically, for this review, the Department has calculated the wage rate using a simple average of the data provided to the ILO under Sub-Classification 34 of the ISIC-Revision 3 standard by countries determined to be both economically comparable to the PRC and significant producers of comparable merchandise. The Department finds the two-digit description under ISIC-Revision 3 (``Manufacture of Motor
Vehicles, Trailers, and Semi-Trailers'') to be the best available wage rate surrogate value on the record because it is specific and derived from industries that produce merchandise comparable to the subject merchandise. Consequently, we averaged the ILO industry-specific wage rate data or earnings data available from the following countries found to be economically comparable to the PRC and are significant producers of comparable merchandise: Ecuador, Egypt, Indonesia, Jordan, Peru,
Philippines, Thailand, and Ukraine. For further information on the calculation of the wage rate, see New-Tec Surrogate Values Memorandum.
Use of Facts Available and Adverse Facts Available (AFA)
Section 776(a) of the Act provides that the Department shall apply
``facts otherwise available'' if (1) necessary information is not on the record or (2) an interested party or any other person (A) withholds information that has been requested, (B) fails to provide information within the deadlines established, or in the form and manner requested by the Department, subject to subsections (c)(1) and (e) of section 782 of the Act, (C) significantly impedes a proceeding, or (D) provides information that cannot be verified as provided by section 782(i) of the Act.
Furthermore, section 776(b) of the Act provides that the Department may use an adverse inference in applying the facts otherwise available when a party has failed to cooperate by not acting to the best of its ability to comply with a request for information. Such an adverse inference may include reliance on information derived from the petition, the final determination, a previous AR, or other information placed on the record.
Application of Total AFA to the PRC-Wide Entity
Because Sunshine International, Qingdao Huazhan, and Zhejiang
Yinmao did not respond to the Department's antidumping questionnaire, we preliminarily determine that these companies withheld information requested by the Department in accordance with sections 776(a)(2)(A) and (B) of the Act. Furthermore, these companies' refusal to participate in the review significantly impeded the proceeding in accordance with section 776(a)(2)(C) of the Act. Specifically, had these companies participated in the review, the Department would have calculated dumping margins for them.
Further, because there is no information on the record demonstrating these companies' entitlement to a separate rate in accordance with section 776(a) of the Act, the Department has preliminarily treated these companies as part of the PRC-wide entity.
Because these companies did not respond to the Department's antidumping questionnaire, and are part of the PRC-wide entity, the
PRC-wide entity's refusal to provide any information constitutes circumstances under which the Department can conclude that less than full cooperation has been shown.\11\ Hence, pursuant to section 776(b) of the Act, the Department has determined that, when selecting from among the facts otherwise available, an adverse inference is warranted with respect to the PRC-wide entity.
\11\ See Notice of Final Determination of Sales at Less than
Fair Value: Static Random Access Memory Semiconductors From Taiwan, 63 FR 8909, 8911 (February 23, 1998); see also Brake Rotors From the
People's Republic of China: Final Results and Partial Rescission of the Seventh Administrative Review; Final Results of the Eleventh New
Shipper Review, 70 FR 69937, 69939 (November 18, 2005) and the SAA at 870.
Selection of AFA Rate
In deciding which facts to use as AFA, section 776(b) of the Act and 19 CFR 351.308(c)(1) authorize the Department to rely on information derived from: (1) The petition; (2) a final determination in the investigation; (3) any previous review or determination; or (4) any information placed on the record. In reviews, the Department normally selects as AFA the highest rate determined for any respondent in any segment of the proceeding.\12\ The Court of International Trade
(CIT) and the Federal Circuit have consistently upheld the Department's practice.\13\ The Department's practice, when selecting an AFA rate from among the possible sources of information, has been to ensure that the margin is sufficiently adverse ``as to effectuate the statutory purposes of the adverse facts available rule to induce respondents to provide the Department with complete and accurate information in a timely manner.'' The Department's practice also ensures ``that the party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully.'' \14\ In choosing the appropriate balance between providing respondents with an incentive to respond accurately and imposing a rate that is reasonably related to the respondent's prior commercial activity, selecting the
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highest prior margin ``reflects a common sense inference that the highest prior margin is the most probative evidence of current margins because, if it were not so, the importer, knowing the rule, would have produced current information showing the margin to be less.'' \15\
Consistent with the statute, court precedent, and its normal practice, the Department has assigned 383.60 percent to the PRC-wide entity
(including Sunshine International, Qingdao Huazhan, and Zhejiang
Yinmao) as AFA. This rate was assigned in the less-than-fair value
(LTFV) investigation of this proceeding and is the highest rate determined for any party in any segment of this proceeding. See Amended
Final Determination of Sales at Less Than Fair Value: Hand Trucks and
Certain Parts thereof From the People's Republic of China, 69 FR 65410
(November 12, 2004) (Hand Trucks Amended Final Determination). As discussed below, this rate has been corroborated.
\12\ See e.g., Freshwater Crawfish Tail Meat from the People's
Republic of China: Notice of Final Results of Antidumping Duty
Administrative Review, 68 FR 19504, 19507 (April 21, 2003).
\13\ See KYD, Inc. v. United States, 607 F.3d 760 (Fed. Cir. 2010) (KYD); Rhone Poulenc, Inc. v. United States, 899 F.2d 1185, 1190 (Fed. Cir. 1990) (Rhone Poulenc); NSK Ltd. v. United States, 346 F. Supp. 2d 1312, 1335 (CIT 2004) (upholding a 73.55 percent total AFA rate, the highest available dumping margin from a different respondent in a less-than-fair-value (LTFV) investigation); Kompass Food Trading Int'l v. United States, 24 CIT 678, 684 (2000) (upholding a 51.16 percent total AFA rate, the highest available dumping margin from a different, fully cooperative respondent); and Shanghai Taoen International Trading Co., Ltd. v.
United States, 360 F. Supp. 2d 1339, 1348 (CIT 2005) (upholding a 223.01 percent total AFA rate, the highest available dumping margin from a different respondent in a previous administrative review).
\14\ See Uruguay Round Agreement Act, Statement of
Administrative Action, H.R. Doc. No. 103-316, vol. 1, at 870 (1994)
(SAA); see also Final Determination of Sales at Less than Fair
Value: Certain Frozen and Canned Warmwater Shrimp from Brazil, 69 FR 76910, 76912 (December 23, 2004); and D&L Supply Co. v. United
States, 113 F.3d 1220, 1223 (Fed. Cir. 1997).
\15\ See KYD (citing Rhone Poulenc, 899 F.2d at 1190).
Corroboration of Secondary Information
Section 776(c) of the Act provides that, when the Department relies on secondary information rather than on information obtained in the course of an investigation or review, it shall, to the extent practicable, corroborate that information from independent sources that are reasonably at its disposal. Secondary information is defined as information derived from the petition that gave rise to the investigation or review, the final determination concerning the subject merchandise, or any previous review under section 751 concerning the subject merchandise. See SAA at 870. Corroborate means that the
Department will satisfy itself that the secondary information to be used has probative value. Id. To corroborate secondary information, the
Department will, to the extent practicable, examine the reliability and relevance of the information to be used.\16\ Independent sources used to corroborate such evidence may include, for example, published price lists, official import statistics and customs data, and information obtained from interested parties during the particular investigation.\17\
\16\ See Tapered Roller Bearings and Parts Thereof Finished and
Unfinished, From Japan, and Tapered Roller Bearings, Four Inches or
Less in Outside Diameter, and Components Thereof From Japan:
Preliminary Results of Antidumping Duty Administrative Reviews and
Partial Termination of Administrative Reviews, 61 FR 57391, 57392
(November 6, 1996), unchanged in Tapered Roller Bearings and Parts
Thereof Finished and Unfinished, From Japan, and Tapered Roller
Bearings, Four Inches or Less in Outside Diameter, and Components
Thereof From Japan; Final Results of Antidumping Duty Administrative
Reviews and Termination in Part, 62 FR 11825 (March 13, 1997).
\17\ See Notice of Preliminary Determination of Sales at Less
Than Fair Value: High and Ultra-High Voltage Ceramic Station Post
Insulators from Japan, 68 FR 35627, 35629 (June 16, 2003), unchanged in Notice of Final Determination of Sales at Less Than Fair Value:
High and Ultra-High Voltage Ceramic Station Post Insulators from
Japan, 68 FR 62560 (November 5, 2003); and Notice of Final
Determination of Sales at Less Than Fair Value: Live Swine from
Canada, 70 FR 12181, 12183-84 (March 11, 2005).
As stated above, we are applying as AFA the highest rate from any segment of this administrative proceeding, which is the PRC-wide rate of 383.60 percent. The 383.60 percent AFA margin is the highest rate on the record of any segment of this antidumping duty order. In the investigation, the Department determined the reliability of the margin contained in the petition by comparing the U.S. prices from the price quotes in the petition to prices of comparable products sold by Qingdao
Huatian Hand Truck Co., Ltd., a mandatory respondent in the LTFV investigation, and found them to be comparable. The Department also compared the SVs used in the petition to the SVs selected for the final determination, and then adjusted and replaced certain values to make them more accurate. Finally, the Department replaced the SV ratios in the petition with those used in the final investigation. Therefore, in the investigation we found this margin to be reliable. This rate continues to be relevant to the PRC-wide entity in this proceeding. No party has provided information related to the PRC-wide entity. The
Federal Circuit has held that ``{t{time} he presumption that a prior dumping margin imposed against an exporter in an earlier AR continues to be valid if the exporter fails to cooperate in a subsequent administrative review.'' Id. Here, the PRC-wide entity failed to cooperate or demonstrate that the margin applied is no longer valid.
Because the Department continues to find the 383.60 percent margin is probative, as it is both reliable and relevant as discussed above, we have assigned this AFA rate to exports of the subject merchandise by the PRC-wide entity, including Sunshine International, Qingdao Huazhan, and Zhejiang Yinmao.
Preliminary Results of the Review
The Department has determined that the following preliminary dumping margins exist for the period December 1, 2008, through November 30, 2009:
Weighted- average
Manufacturer/Exporter
margin
(percent)
New-Tec Integration (Xiamen) Co., Ltd......................
0.00
PRC-wide Entity............................................
383.60
Public Comment
The Department will disclose to parties to this proceeding the calculations performed in reaching the preliminary results within five days of the date of publication of these preliminary results. See 19
CFR 351.224(b). Interested parties may submit written comments (case briefs) within 30 days of publication of the preliminary results and rebuttal comments (rebuttal briefs) within five days after the time limit for filing case briefs. See 19 CFR 351.309(c)(1)(ii) and 351.309(d)(1). Pursuant to 19 CFR 351.309(d)(2), rebuttal briefs must be limited to issues raised in the case briefs. Parties who submit arguments are requested to submit with the argument: (1) A statement of the issue; (2) a brief summary of the argument; and (3) a table of authorities. Further, the Department requests that parties submitting written comments provide the Department with a diskette containing the public version of those comments.
Any interested party may request a hearing within 30 days of publication of this notice. See 19 CFR 351.310(c). Interested parties who wish to request a hearing or to participate if one is requested, must submit a written request to the Assistant Secretary for Import
Administration within 30 days of publication of this notice. Requests should contain: (1) The party's name, address, and telephone number;
(2) the number of participants; and (3) a list of issues to be discussed. See 19 CFR 351.310(c). Issues raised in the hearing will be limited to those raised in the briefs.
Unless the deadline is extended pursuant to section 751(a)(2)(B)(iv) of the Act, the Department will issue the final results of this AR, including the results of our analysis of the issues raised by the parties in their comments, within 120 days after issuance of these preliminary results.
Deadline for Submission of Publicly Available Surrogate Value
Information
In accordance with 19 CFR 351.301(c)(3), the deadline for submission of publicly available information to value FOPs under 19 CFR 351.408(c) is 20 days after the date of publication of these preliminary
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results. In accordance with 19 CFR 351.301(c)(1), if an interested party submits factual information less than ten days before, on, or after (if the Department has extended the deadline), the applicable deadline for submission of such factual information, an interested party has ten days to submit factual information to rebut, clarify, or correct the factual information no later than ten days after such factual information is served on the interested party. However, the
Department notes that 19 CFR 351.301(c)(1), permits new information only insofar as it rebuts, clarifies, or corrects information recently placed on the record. See, e.g., Glycine from the People's Republic of
China: Final Results of Antidumping Duty Administrative Review and
Final Rescission, in Part, 72 FR 58809 (October 17, 2007), and accompanying Issues and Decision Memorandum at Comment 2. Furthermore, the Department generally will not accept business proprietary information in either the surrogate value submissions or the rebuttals thereto, as the regulation regarding the submission of surrogate values allows only for the submission of publicly available information.
Assessment Rates
Upon issuing the final results of the review, the Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries. The Department intends to issue assessment instructions to CBP 15 days after the date of publication of the final results of review.
Pursuant to 19 CFR 351.212(b)(1), we will calculate importer-specific ad valorem duty assessment rates based on the ratio of the total amount of the dumping margins calculated for the examined sales to the total entered value of those same sales. We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review if any importer-specific assessment rate calculated in the final results of this review is above de minimis. However, the final results of this review shall be the basis for the assessment of antidumping duties on entries of merchandise covered by the final results of this review and for future deposits of estimated duties, where applicable.
Cash Deposit Requirements
The following cash deposit requirements, when imposed, will apply to all shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for New-Tec will be the rate established in the final results of this administrative review; (2) for any previously reviewed or investigated PRC or non-PRC exporter, not covered in this administrative review, with a separate rate, the cash deposit rate will be the company-specific rate established in the most recent segment of this proceeding; (3) for all other PRC exporters, the cash deposit rate will continue to be the PRC- wide rate (i.e., 383.60 percent); and (4) the cash-deposit rate for any non-PRC exporter of subject merchandise from the PRC will be the rate applicable to the PRC exporter that supplied that exporter. These cash deposit requirements, when imposed, shall remain in effect until further notice.
Notification to Importers
This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This administrative review and notice are in accordance with sections 751(a)(1) and 777(i) of the Act and 19 CFR 351.213.
Dated: January 7, 2011.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
FR Doc. 2011-791 Filed 1-13-11; 8:45 am
BILLING CODE 3510-DS-P
